A. Relevant Facts This is the second appeal of this case and many of the underlying facts and procedural history are set forth in our prior decision, Yager v. Clauson, 166 N.H. 570, 101 A.3d 6 (2014). The client's legal malpractice claim stems from the defendants' representation of him in two timber trespass actions. Seeid. at 571, 101 A.3d 6.
To establish legal malpractice under New Hampshire law, under either a contract or tort theory, a plaintiff must prove (1) the existence of an attorney-client relationship, "which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client;" (2) a breach of that duty; and (3) "resultant harm legally caused by that breach." Yager v. Clauson , 166 N.H. 570, 572–73, 101 A.3d 6, 9 (2014)(citing Estate of Sicotte v. Lubin & Meyer, P.C. , 157 N.H. 670, 674, 959 A.2d 236, 240 (2008). "Whether [an] attorney has breached the applicable standard of care in representing the client is a question of fact to be determined through expert testimony and usually cannot be decided as a matter of law."
Expert testimony on proximate cause is required in cases where determination of that issue is not one that lay people would ordinarily be competent to make." Yager v. Clauson, 166 N.H. 570. 573, 101 A.3d 6 (2014) (quotations omitted). Massachusetts follows a comparable rule in legal malpractice cases.
Legal malpractice is negligence by an attorney in representing a client. Yager v. Clauson, 166 N.H. 570, 573 (2014). The elements of a legal malpractice claim are "(1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach."
(duty); Geiserman v. MacDonald, 893 F.2d 787, 794 (5th Cir. 1990) (breach); Alexander v. Turtur & Assocs., 146 S.W.3d 113, 120 (Tex. 2004) (causation); see also Yager v. Clauson, 166 N.H. 570, 573 (2014) (commenting that there may be situations in which expert testimony is unnecessary, such as where “an attorney's negligence is so patent and conclusive that reasonable persons can reach only one conclusion”).
Id.In a legal malpractice action, a plaintiff must demonstrate (1) that an attorney-client relationship existed that imposed a duty on the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to the plaintiff; (2) a breach of that duty; and (3) resulting harm. Yager v. Clauson, 166 N.H. 570, 572-73, 101 A.3d 6, 9 (2014). In this case, Plaintiff does not complain about and could not reasonably complain about the ultimate result (i.e., dismissal) that Defendant helped Plaintiff achieve in the underlying criminal matter.
Expert testimony is required where the subject presented is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson. Yager v. Clauson, 166 N.H. 570, 573 (2014). Absent exceptional circumstances, expert testimony is necessary to inform the jury regarding the skill and care ordinarily exercised by lawyers and to prove a breach thereof.
Thus, "[t]o establish legal malpractice a plaintiff must prove: (1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach." Yager v. Clauson, 166 N.H. 570, 572-73, 101 A.3d 6 (2014) (quotation omitted). As the foregoing implies, an action for legal malpractice "is a claim ... for liability ‘unique to and arising out of the rendition of professional services.’ "
ases, especially those in which an attorney fails to act once he has undertaken to represent a client."); Allyn v. McDonald, 910 P.2d 263, 266 (Nev. 1996) (explaining when "the applicable statute of limitations was clear and unambiguous" and "the accrual date of the claim was also not subject to question or interpretation," the issue of "whether the attorney was negligent in failing to file the claim before the statute of limitations expired . . . was within the ordinary knowledge and experience of a layman"); id. (cautioning "if the applicability of the statute at issue was uncertain, if significant questions regarding the accrual date of the claim existed, or if issues regarding tolling of the statute existed, the case might extend beyond the realm of ordinary experience and knowledge of the layman, thus requiring an expert witness to establish the attorney's breach of the duty of care"); Yager v. Clauson, 101 A.3d 6, 10 (N.H. 2014) ("[W]hether expert testimony is required to prove legal malpractice premised on a failure to file a claim within the statute of limitations depends upon the specific facts of the case and whether they are 'within the realm of common knowledge' or 'beyond the ken of the average layperson.'" (quoting Estate of Sicotte, 959 A.2d 236, 239 (N.H. 2008))). Here, pursuant to Rule 40(j) of the South Carolina Rules of Civil Procedure and the Agreement Striking [the] Case from [the] Docket, Respondents had to restore the case to the docket within one year of the agreement or Appellants' action would be dismissed.
in other jurisdictions have . . . dispensed with any expert testimony requirement in egregious cases, especially those in which an attorney fails to act once he has undertaken to represent a client."); Allyn v. McDonald, 910 P.2d 263, 266 (Nev. 1996) (explaining when "the applicable statute of limitations was clear and unambiguous" and "the accrual date of the claim was also not subject to question or interpretation," the issue of "whether the attorney was negligent in failing to file the claim before the statute of limitations expired . . . was within the ordinary knowledge and experience of a layman"); id. (cautioning "if the applicability of the statute at issue was uncertain, if significant questions regarding the accrual date of the claim existed, or if issues regarding tolling of the statute existed, the case might extend beyond the realm of ordinary experience and knowledge of the layman, thus requiring an expert witness to establish the attorney's breach of the duty of care"); Yager v. Clauson, 101 A.3d 6, 10 (N.H. 2014) ("[W]hether expert testimony is required to prove legal malpractice premised on a failure to file a claim within the statute of limitations depends upon the specific facts of the case and whether they are 'within the realm of common knowledge' or 'beyond the ken of the average layperson.'" (quoting Estate of Sicotte, 959 A.2d 236, 239 (N.H. 2008))).